Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3563/19 in S.C.Suit No. 2447/19. 1 Order.
MHCC010096972019
Presented on : 23-09-2019
Registered on : 23-09-2019
Decided on : 27-06-2023
Duration : 3 years, 9 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3563 OF 2019
IN
S. C. SUIT NO. 2447 OF 2019
Mrs. Sadaf Ashfak Jumani )...Plaintiff
Versus
Parween Mohammed Wasif and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 27th JUNE, 2023.
Shri Mukesh Dubey, Advocate for the plaintiff.
Shri Nirav Doshi with Shri Aseem Naphade with Devanshi Bafna,
Advocate for the defendant nos.1 and 2.
ORDER
1. The plaintiff has taken out the present notice of motion for
the relief that defendants be restrained from alienating or creating any
third party right in respect of the suit property i.e. Flat No.8, AWing,
2nd Floor, Happy Home CHS, New Hall Road, Kurla (W), Mumbai –
400070 and the shop situated at Gala No.2 admeasuring 2400 sq.ft. of
Ground plus one floor, situated at Ram Bachan Tabela, Gazi Miyan
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N/m No. 3563/19 in S.C.Suit No. 2447/19. 2 Order.
Dargah Road, Halav Pool, Kurla (W), Mumbai – 400070. The plaintiff
further prayed for direction to defendant no.1 and 2 to give account of
money received by them by letting out shop situated at Gala No.2 and
also for appointment of Court Commissioner.
2. It is the case of the plaintiff that defendant no.1 and 2 are
mother and brother of the plaintiff. Defendant no.3 is a cooperative
housing society. The father of the plaintiff during his lifetime has
acquired the suit property. The father of the plaintiff was doing business
of printing press in the name and style of “Rose Fine Art” from the suit
shop. After his demise on 07/12/2017, defendant no.2 was looking
after the said business. From January, 2018 till February, 2019
defendant no.2 was paying the plaintiff Rs.20,000/ per month in cash
as her share out of the said business. On 18/03/2019 defendant no.1
and 2 with elder sister Mrs. Andalip Raymond Corria and one advocate
came to residence of the plaintiff and on the pretext of transferring the
press license of the said business in the name of all heirs, took
signatures of the plaintiff on some papers and register. The plaintiff
without reading the contents of papers signed those papers as she had
faith on defendant no.2 being her younger brother.
3. On 29/06/2019 the plaintiff visited the suit flat, but
defendant no.1 and 2 told the plaintiff that she should not visit the suit
flat and suit shop as she has no share in the suit flat and suit shop. The
plaintiff realized that fraud has been played upon her by defendant no.1
and 2, therefore she visited Vinoba Bhave Nagar Police Station on
02/07/2019, however the officer refused to take the complaint as it was
civil dispute and advised her to approach the civil court. On enquiry,
plaintiff came to know that defendant no.2 has let out the suit shop and
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N/m No. 3563/19 in S.C.Suit No. 2447/19. 3 Order.
solely earning handsome money from it. Therefore, the plaintiff has
filed the present suit with prayer to grant leave under Order II Rule 2 of
CPC, to restrain the defendants from alienating or creating third party
interest over the suit property, direction to defendant no.1 and 2 to give
account of money received by them by letting out suit shop and
appointment of Court Commissioner. The plaintiff prayed to allow the
notice of motion.
4. The defendant opposed the notice of motion by filing reply
and submitted that the plaintiff's suit is not maintainable. This Court
has no pecuniary jurisdiction to try and decide the suit as value of the
subject matter is above Rupees One Crore. It is further alleged by the
defendant that as the parties are Mohammedan, therefore the
provisions of Mohammedan Law applicable to the parties. Therein the
son of the deceased is entitled for double of share than daughter. So the
contention of the plaintiff that she has an equal share in a suit property
is absolutely false. It is the contention of the defendant that at the most
the share of the plaintiff in a suit property is only 12.5%. Therefore,
defendant prayed for rejection of notice of motion.
5. Perused application, say filed by the defendants. Heard
both advocates at length.
6. The following points arose for my determination alongwith
my findings thereon for the reasons enumerated below :
SR.NO. POINTS FINDINGS
1. Whether plaintiff is entitled for
temporary injunction as prayed ?
Partly in the
Affirmative.
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N/m No. 3563/19 in S.C.Suit No. 2447/19. 4 Order.
2. What order ? As per final order.
REASONS
7. The contention of the plaintiff that defendant no.1 and 2
are mother and brother of the plaintiff. Defendant no.3 is a cooperative
housing society. The suit property acquired by father of the plaintiff
during his lifetime. The residential flat i.e. Flat No.8 and the shop
situated at Gala No.2 admeasuring 2400 sq.ft. is the selfacquired
property of the father of the plaintiff. The relation between the parties
is not denied by any one. The father of plaintiff is not alive has also
come on record. Therefore, in my opinion, if defendant sold the suit
property, there will be a multiplicity of the litigation. Therefore, in my
opinion, plaintiff is entitled for the relief that defendant should not
alienate or create any third party interest over the suit property. The
plaintiff by way of this notice of motion also claim that defendant be
directed to give account of money received by them and appointment of
Court Commissioner. But the same relief prayed by the plaintiff in her
final prayer. Therefore, in my opinion, at this prima facie stage, plaintiff
is not entitled for the same reliefs. Hence, considering this, I pass the
following order :
ORDER
1. Prayer clause (a) of Notice of Motion No. 3563/2019 is made
absolute.
2. Prayer clause (b) and (c) of Notice of Motion No. 3563/2019
stand rejected.
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N/m No. 3563/19 in S.C.Suit No. 2447/19. 5 Order.
3. N/m No. 3563/2019 is disposed off.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 27/06/2023. Mumbai.
1. Dictated on : 27/06/2023.
2. Transcribed on : 30/06/2023.
3. Checked on : 10/07/2023.
4. Signed on : 12/07/2023.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
12/07/2023. 5.58 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 27/06/2023.
Judgment/Order signed by P.O. on 12/07/2023.
Judgment/Order uploaded on 12/07/2023.
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